Decorative Scales of Justice in the Courtroom
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The Senate Judiciary Committee Thursday halted a pair of Republican proposals that would change the judicial selection process. 

Senate Bill 372, sponsored by Sen. Daniel Emrich, R-Great Falls, would propose a constitutional amendment to give the Legislature the authority to appoint district judges and state Supreme Court justices, a significant departure from the current system of judicial elections. If the proposal were to resurface and pass, voters would have to approve the constitutional change in the 2024 election. 

Emrich said in committee Wednesday that voters often lack adequate information to select the best judicial candidates, and that lawmakers, to the contrary, could dig deep into would-be judges’ backgrounds and beliefs. Under the bill, the House of Representatives would appoint judges and the Senate would confirm them.

“The idea that was invested in choosing the House of Representatives as the appointers of the judiciary is really to preserve the voice of the people,” Emrich testified. “Every member of the House is an elected representative of the people.”

The governor would still have power to fill vacancies in between legislative sessions under the bill. 

The proposed amendment referral generated concerted opposition from voter advocacy groups and representatives of the legal system. 

Bruce Spencer, a lobbyist for the Montana Bar Association, called the proposal a “wholesale overhaul of the method judges have been selected in this state since statehood.” And if voters have a hard time understanding what judicial candidates are all about, lawmakers may be no better, he said.

“In the many meetings and hearings I’ve had up here in both houses about partisan judicial elections, I’ve heard elected representatives say they had a hard time figuring it out,” Spencer said. “So if that’s the justification for this, I don’t think it solves that problem.”

Co-sponsors on the bill include Senate President Jason Ellsworth, R-Hamilton and several members of the Senate Judiciary Committee, including Sens. Barry Usher, R-Laurel, Bob Brown, R-Thompson Falls, Theresa Manzella, R-Hamilton, Steve Hinebauch, R-Wibaux, and Emrich. Nonetheless, the bill died in committee on a 5-6 vote. 

Brown, despite cosponsoring the bill, was among the no votes. He noted during the vote Thursday that the Senate had debated a water court bill earlier in the week that generated opposition because the governor had the power to select water court judges, not citizens.

The second courts bill the committee tabled Thursday is Senate Bill 431, sponsored by Sen. Chris Friedel, R-Billings. The bill would establish an advisory committee to recommend candidates for vacant judicial seats to the governor. 

But unlike the Judicial Nominating Commission, a panel that lawmakers eliminated last session,  the advisory committee envisioned by the bill would be populated by sitting members of the Senate Judiciary Committee. 

And unlike Judicial Nominating Commission protocols, the governor wouldn’t have to pick from the field of candidates that Friedel’s panel recommends. 

Friedel testified Wednesday that he thinks the current process cheats the Senate out of its constitutional role in confirming judicial appointments. The Senate only confirms judges when the governor makes the appointment after an election and before or during a session. 

“Judges like to get elected and retire when we’re not in session,” Friedel said, adding that “this bill will actually give us and the people of this great state a bite at that apple.” 

The Judicial Nominating Commission was eliminated under 2021’s Senate Bill 140, one of the first major policy priorities under the new administration of Republican Gov. Greg Gianforte. Although the power to fill judicial vacancies now lies solely with Gianforte, the governor has nonetheless formed advisory committees of local stakeholders to vet and recommend judicial candidates. 

Friedel said he sat in on the meeting of one such committee during the process to fill a vacancy in Yellowstone County’s 13th Judicial District. He said he showed up about 15 minutes late, thinking there would be hours or even days of debate and interviews yet to come. To his surprise, he said, the committee wrapped up after about two hours.

“​​I was hoping for something grander,” he said. 

The bill generated opposition from the governor’s office. 

“The process that is currently structured is working well,” Gianforte policy adviser Glenn Oppel testified. “Most importantly it provides for the input of citizens who understand the needs of their court system and who are familiar with the candidates being considered.”

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Raised in Arizona, Arren is no stranger to the issues impacting Western states, having a keen interest in the politics of land, transportation and housing. Prior to moving to Montana, Arren was a statehouse reporter for the Arizona Capitol Times and covered agricultural and trade policy for Politico in Washington, D.C. In Montana, he has carved out a niche in shoe-leather heavy muckraking based on public documents and deep sourcing that keeps elected officials uncomfortable and the public better informed.